AJ (S 94B: Kiarie and Byndloss Questions) Nigeria

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeMr Justice Lane,Hanson,Lane J,Hanson UTJ
Judgment Date28 February 2018
Neutral Citation[2018] UKUT 115 (IAC)

[2018] UKUT 115 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)





AJ (Anonymity Direction Made)
The Secretary of State for the Home Department

For the Appellant: Miss M Cohen, Counsel, instructed by Wilson Solicitors

For the Respondent: Mr C Thomann, Counsel, instructed by the Government Legal Department

AJ (s 94B: Kiarie and Byndloss questions) Nigeria

(1) In the light of Kiarie and Byndloss v Secretary of State for the Home Department [2017] UKSC 42, the First-tier Tribunal should adopt a step-by-step approach, in order to determine whether an appeal certified under section 94B of the Nationality, Immigration and Asylum Act 2002 can be determined without the appellant being physically present in the United Kingdom.

(2) The First-tier Tribunal should address the following questions:

1. Has the appellant's removal pursuant to a section 94B certificate deprived the appellant of the ability to secure legal representation and/or to give instructions and receive advice from United Kingdom lawyers?

2. If not, is the appellant's absence from the United Kingdom likely materially to impair the production of expert and other professional evidence in respect of the appellant, upon which the appellant would otherwise have relied?

3. If not, is it necessary to hear live evidence from the appellant?

4. If so, can such evidence, in all the circumstances, be given in a satisfactory manner by means of video-link?

(3) The First-tier Tribunal should not lightly come to the conclusion that none of the issues covered by the first and second questions prevents the fair hearing of the appeal.

(4) Even if the first and second questions are answered in the negative, the need for live evidence from the appellant is likely to be present. A possible exception might be where the respondent's case is that, even taking a foreign offender appellant's case at its highest, as regards family relationships, remorse and risk of re-offending, the public interest is still such as to make deportation a proportionate interference with the Article 8 rights of all concerned.

(5) If the First-tier Tribunal concludes that the appeal cannot be lawfully determined unless the appellant is physically present in the United Kingdom, it should give a direction to that effect and adjourn the proceedings.


This case is concerned with the effect of the judgments of the Supreme Court in R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 on a decision of the First-tier Tribunal, made before the handing down of those judgments, in which the Tribunal dismissed the human rights appeal of a criminal appellant who had been deported from the United Kingdom, prior to the hearing of his appeal, pursuant to certification by the respondent section 94B of the Nationality, Immigration and Asylum Act 2002.


The appellant is a citizen of Nigeria, born in December 1987. His mother brought him to this country in 1989, when he was aged 2. The appellant and his mother arrived in possession of leave to enter as visitors. The appellant's mother overstayed and so did the appellant (having, at the time, no choice in the matter). The appellant's status was eventually regularised in 2009, when he was granted indefinite leave to remain.


On 25 November 2014, the appellant was convicted at Croydon Crown Court of child abduction and sentenced to eighteen months' imprisonment. A Sexual Offences Prevention Order was made for a five-year term. The Sentencing Judge said:-

“The victim in this case … was a 14 year old child. It is perfectly apparent from the exchange of messages that she was infatuated with you. She spent at least one night at your flat and was then found by police hiding on the stairs outside your flat at 3 o' clock in the morning the following day.

In my judgment you made little or no effort to assist the police in recovering the child and returning her to her parents. There is no doubt in my mind that you are the one who is responsible for her SIM card being down the toilet in your flat. The only inference that I can draw from that is that you were afraid that data on it would incriminate you and I do not doubt that that is the case.

… This is a serious offence. The maximum sentence is one of seven years' imprisonment. There is, it is fair to say, no evidence of sexual contact between yourself and [the child] but there is no doubt in my mind that your motive was to groom this child for sexual activity in due course.

You have been convicted on the clearest possible evidence by the jury in my judgment and shown no remorse for your actions.”


On 6 January 2015, the appellant was notified that section 32 of the UK Borders Act 2007 required that a deportation order should be made against him, unless he could demonstrate that he fell within one of the exceptions set out in section 33 of that Act. A notice under section 120 of the Nationality, Immigration and Asylum Act 2002 was also served on the appellant at the same time.


The appellant made submissions against deportation but they failed to persuade the respondent that the appellant fell within one of the section 33 exceptions. Accordingly, on 3 March 2015, the respondent served a notice of deportation on the appellant. At the same time, she certified the appellant's human rights claim under section 94B of the 2002 Act.


On 3 March 2015, the Upper Tribunal refused the appellant's application for permission to bring judicial review proceedings to challenge the certification decision. An application for permission to appeal to the Court of Appeal was refused by the Upper Tribunal on 22 May 2015. The appellant's renewed application to the Court of Appeal was subsequently dismissed.


The appellant made further submissions to the respondent on 3 July 2015, which were rejected on 20 July 2015 as not amounting to a fresh asylum or human rights claim.


On 28 July 2015, the appellant was deported to Nigeria.


On 14 August 2015, the appellant appealed, from outside the United Kingdom, against the refusal of his human rights claim. The appellant's appeal was heard at Taylor House on 19 May 2017 by First-tier Tribunal Judge Mitchell. Ms Mallick of Counsel appeared on behalf of the appellant. She was instructed by Cleveland Law Limited.


The judge heard oral evidence from the appellant's mother and father, and from Lotte Lewis-Smith, a representative of an organisation called “Roots to Return”. This is a charity, set up to support those “who are pursuing out-of-country appeals once removed from the UK”. The letter stated that the writer had “been in touch with [the appellant] and his mother … since he was removed in 2015 … We have mostly been in contact with [mother] who has been assisting her son to gather evidence, employ a lawyer and get the appeal lodged”.


The judge's decision recorded that the appellant was the father of a girl born in the United Kingdom in June 2009. It noted that the mother of the child did not attend the Tribunal to give evidence or provide a statement in connection with the proceedings. The judge observed that the witnesses claimed the appellant had “a very close relationship with his daughter”. It was also stated that:

“The appellant had been effectively destitute and homeless since his deportation to Nigeria in 2015. He does not have the appropriate documentation or experience of Nigeria and is unlikely to obtain a job and may suffer degrading treatment as a consequence” (paragraphs 24 to 26)

The judge further noted that the appellant was said to have “experienced theft of money and his mobile phone on more than one occasion”. The appellant's circumstances in Nigeria were said to be “very compelling”.


The judge's findings of fact began at paragraph 21 of the decision. At paragraph 32, the judge found that there was “no statement from the appellant or any evidence that he has shown any contrition or remorse for the crime”. So as concerned the relationship between the appellant and the daughter, the judge found at paragraph 34 that there had been “no evidence of any ongoing contact” between the two since the appellant was deported in July 2015. Although noting the difficulties of communicating between Nigeria and the United Kingdom, the judge observed that the appellant “has a mobile telephone and is able to communicate with his mother”. The judge cited evidence from the mother that she recorded messages from her son in Nigeria, which were played to his daughter, who appeared to respond well to them.


At paragraph 35, the judge found that there did not appear to have been ongoing contact between the appellant and his daughter whilst the appellant had been in the United Kingdom. There was no evidence that the daughter was a British citizen: “In fact, I have almost no evidence that the child exists apart from the testimony of the witnesses”. The judge considered this was particularly significant, given that the appellant had been given a section 120 notice “and to date there is still no evidence that this child exists or is living in the United Kingdom and is a British citizen as claimed apart from the oral testimony of the witnesses”. The judge, nevertheless, accepted for the purposes of the appeal that the child was British and had lived in the United Kingdom for a continuous period of seven years.


At paragraph 36, the judge recorded that the daughter was living with her mother and that the appellant had never had sole responsibility for the child. There were “no suggestions that the child is suffering in any way through the absence of the appellant from the United Kingdom”.


At paragraph 47,...

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